Fair Trials and Conviction Rates

One of the most difficult comparisons from which to generate a meaningful statistic about is a country-by-country measurement of criminal conviction rates (based on cases filed). Japan and China are in the high 95%+ arena, but does really this tell us about criminal convictions? Are these two systems remotely comparable? Do prosecutors really screen cases better so that they lose fewer of them, or is the system one in which being charged with a crime pretty much results in a conviction or both? Balance the fact that Japanese prosecutors file a very small number of felony cases when compared to their American counterparts with a 2001 Journal of Legal Studies study of 321 Japanese judges that found that those who acquit tend to have significantly less successful careers than judges who convict.

What exactly does such a measurement mean when an estimated one out of ten crimes goes unreported (Wikipedia about Mexico) or the criminal justice system is up for bids with corrupt judges and prosecutors (all over Africa, Asia and Latin America… and even we in the West are hardly immune)? What happens when you add plea-bargaining or monetary fines for relatively minor offenses (do you always fight that erroneous traffic ticket… is a traffic ticket a “criminal offense” in the official statistics?)? What is a crime in a politically repressive country? Then again, what is “justice”?

Is a practice of torturing those arrested relevant to the conviction statistics? Hey, don’t laugh at the question, considering that was considered standard operating procedure in this part of the world in “olden days”: “In Europe and the New World, until the early 18th century, it was common for the justice system to have suspects tortured to extract confessions from them, since circumstantial evidence was rarely analyzed or admitted in those times. Although this practice is generally and has generally been disallowed in the more recent past, except during 20th-century fascist and Soviet governments, there have been attempts to introduce evidence obtained from suspects tortured elsewhere (so-called extraordinary rendition).” Wikipedia. OK, not just in the “olden days.”Think about the recent situations where the U.S. has transported “terrorist” detainees to countries where such “interrogation methods” are just “the way it is.” Water-boarding anyone?

In the most traditional Islamic legal systems, where the testimony of men is routinely accorded more weight that what is granted to female witnesses, does this impact the conviction rate? What about systems that can keep prisoners under lock and key for an inordinately long time before charges are brought and prosecuted? If someone ‘fesses up to get out of such incarceration, does that count? Guantanamo anyone? Convictions in open court versus closed-door trials?

While most nations still hold a person charged with a crime is innocent until proven guilty – from the United States to Russia – there are systems where guilt is presumed. Mexico has maintained that practice right up into the present day, but there has been a big constitutional change in that country on our southern border, such that Boalt Hall (Cal Berkeley’s law school) even offers a course in the ramifications of changing that legal standard: “Mexico’s criminal justice system is set to begin a remarkable transformation. The Mexican Constitution was recently amended to include a presumption of innocence in criminal cases, and the deadline to implement this amendment is the year 2016. But such a momentous change from a system that presumes guilt to one that presumes innocence will require other significant revisions in the investigation and prosecution process. Mexico may need to reform the way that it handles reports of crime, crime scene investigations, police searches, interrogations, arrests, and many other early parts of the criminal justice process, since the way in which the State investigates a crime and collects and preserves evidence has a direct bearing on whether the government can effectively prosecute an individual at a trial at which the defendant's guilt is no longer presumed.” (from Boalt’s Course Catalog).

As drug cartels have having their way in Mexico, literally fomenting a civil war where drug cash buys lots of leeway for cartel leaders but where the lower levels (in terms of monetary stature, not the seriousness of the crime!) of criminal activity result in convictions with flimsy proof such as inconsistent witness statements. A new documentary – Presunto Culpable (“Presumed Guilty”) – is a resounding success among Mexican film-goers; the March 20^th Los Angeles Times describes the storyline: “A young man is arrested off the street for a fatal shooting he did not commit. Never mind that he has an alibi and witnesses. Never mind that ballistics tests show no sign of gunpowder on his hands. Never mind that the young man who fingers him does so belatedly, and then can't describe him…. Instead what ensues is a slow-motion train wreck of justice in which the suspect, Antonio Zuniga, is convicted — twice — by the same judge, even though investigators are discredited and the witness recants. Zuniga is sentenced to 20 years in prison…

“Architects of Mexico's touted war on drug cartels would do well to watch and take careful notes — no crime crackdown seems likely to yield lasting success until the country cleans up a justice system that few Mexicans trust. Despite winning plaudits in film festivals abroad since 2009, the movie began showing across Mexico only last month.” Yeah, what exactly is justice? And when are prosecutorial efforts – even in the United States – worthy of greater scrutiny… and when are they not. Ask yourself what assumptions you make about a criminal defendant knowing nothing more than he or she has been accused of a crime… even if they are acquitted. Would you really trust a jury in a small American southern town (the south has the highest conviction rates in the nation according to a New York Times study) if you were charged of a crime you did not commit? Welcome to the real world.

I’m Peter Dekom, and our American system of justice’s strongest trait may just its ability to take criticism and correct.